Here, the information needed to demonstrate adverse effect
falls within the bounds of the attorney-client privilege. What
was the disqualified attorney planning as a defense for
Petitioner? Obviously, the Petitioner is in a best position to
answer the question and show “an identifiable difference in the
quality of the representation” between his disqualified chosen
counsel and his trial counsel. Rodriguez, 382 F.3d at 675.
Based on the language of the Seventh Circuit opinion and the
Court’s own research, the Court concludes that the Petitioner has
the burden of demonstrating that the disqualification of his
chosen counsel had an adverse effect on his defense.
Accordingly, Petitioner’s motion in limine is DENIED.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court

pated: ly Ld Ads


18, 24 (1967). The State responds that the Seventh Circuit's
opinion in this case and a myriad of Supreme Court and appellate
court cases clearly establishes that the burden lies with
Petitioner.

In ineffective assistance cases resulting from an alleged
conflict of interest, the Supreme Court has held that the burden
lies with the petitioner to demonstrate that a conflict of
interest adversely affected his lawyer’s performance. See
Mickens v. Taylor, 535 U.S. 162, 174 (2002) (holding that a
petitioner must demonstrate that a conflict of interest adversely
affected his counsel’s performance); Strickland v. Washington,
466 U.S. 668, 692-93 (1984) (requiring a defendant to show that
the counsel’s error had an adverse effect on the defense). The
Seventh Circuit has held that a petitioner can demonstrate an
adverse effect by showing that his representation would have been
different had there been no conflict of interest. See Hall v.
U.S, 371 F.3d 969, 973 (7th Cir. 2004); U.S. v. Fuller, 312 F.3d
287, 291-92 (7th Cir. 2002). Other circuits also allocate the
burden of proof to the petitioner in conflict cases. See, e.g.,
Longworth v. Ozmint, 377 F.3d 437 (4th Cir. 2004); Winkler v.
Keane, 7 F.3d 304 (2d Cir. 1993); U.S. v. Knight, 680 F.2d 470

(6th Cir. 1982).


IN THE UNITED STATES DISTRICT aie I
FOR THE NORTHERN DISTRICT OF ILLINO: L E D
EASTERN DIVISION

JUL 19 2005
NEFATLY RODRIGUEZ, JUDGE HARRY D. LEINENWEBER
U.S. DISTRICT COURT JUDGE
Plaintiff
1 Case No. 02 C 2184
v. Hon. Harry D. Leinenweber
NEDRA CHANDLER,
Defendant

MEMORANDUM OPINION AND ORDER

On November 24, 2003, the Court granted Petitioner’s 28
U.S.C. § 2254 petition after concluding that the state court’s
disqualification of Petitioner’s chosen counsel violated his
Sixth Amendment rights. See Rodriguez v. Sternes, No. 02 C 2184,
2003 WL 22802077 (N.D. Ill. Nov. 24, 2003). In so holding, the
Court concluded that Petitioner need not “demonstrate prejudice
resulting from the state court’s erroneous denial of his right to
choice of counsel.” Id. at *8.

Illinois appealed the ruling. Upon review, the Seventh
Circuit agreed that the standard this Court used in reviewing the
disqualification of Petitioner’s counsel was an erroneous one.
Rodriguez v. Chandler, 382 F.3d 670, 676 (7th Cir. 2004). The

Seventh Circuit vacated and remanded the case holding that habeas

NES


corpus relief should only be granted if the disqualification of
his counsel “adversely effected” Petitioner's defense. Id.

Before the Court is Petitioner’s motion in limine seeking to
establish that the State bears the burden of establishing that
Petitioner was not adversely effected by the denial of his
counsel. The State responds that Petitioner has the burden of
demonstrating that he was adversely effected by the denial of
counsel,

The Court first examines the Seventh Circuit opinion in this
case. In considering the disqualification of counsel issue, the
Seventh Circuit acknowledged the open question of whether a
court’s erroneous disqualification of counsel requires a harmless
error analysis. See id. at 673. In response, the Seventh
Circuit articulated the “adverse-effect” standard, which provides
a middle ground between automatic reversal and harmless-error
analysis. Id. at 675. The Seventh Circuit compared Petitioner’s
case to a situation where a person receives the services of a
lawyer with a concealed conflict and concluded that an “adverse
effect” must be demonstrated. The court explained:

The adverse-effect standard lies midway
between automatic reversal and requiring
proof of a likely difference in the
litigation’s outcome . . . an identifiable
difference in the quality of representation
between the disqualified counsel and the

attorney who represents the defendant at
trial . . . it must be enough to show that


the defendant’s representation suffered a
setback from the disqualification.

Id. The Seventh Circuit next asked, “{h]as [Petitioner] shown an
adverse effect?” Id. Finding the record silent, the Court
remanded the case so that both sides could “have an opportunity
to produce evidence and craft arguments” relating to the adverse-
effect standard and its application in this case. Id. at 676.

Both parties agree that the Seventh Circuit’s language
suggests that the burden lies with Petitioner. The Seventh
Circuit asked if Petitioner “has shown an adverse effect”;
acknowledged the open question of how could “a defendant prove
prejudice when his substitute counsel provided constitutionally
adequate assistance”; and stated that the “norm in cases on
collateral review is that the petitioner must show that the error
had a substantial and injurious effect on the outcome.” Id. at
674-76 (emphasis added).

Petitioner argues, however, that Supreme Court case
precedent suggests that the State has the burden of proving no
adverse effect because the Seventh Circuit effectively created a
new harmless-error rule. Petitioner contends that similar to
original common-law harmless error cases, the burden should be
placed on the beneficiary of the constitutional error -- the
State -- to prove that there was no injury. See O’Neal v.

McAninch, 513 U.S. 432 (1995); Chapman v. California, 386 U.S.